Canada (Attorney General) v. Russell
The Umpire erred as a matter of law; the statutory conditions in s.32(1) were satisfied because the employer authorized the leave and granted it for a defined period (one year), which constituted agreement as to the return date; accordingly the Umpire's decision is set aside and the matter is remitted for...
Source-derived case information.
- Citation
- 2009 FCA 177
- Parties
- Applicant: THE ATTORNEY GENERAL OF CANADA; Respondent: MELISSA L. RUSSELL
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 27 May 2009
- Procedural Posture
- Application for Judicial Review / Decision From the Federal Court of Appeal
- Outcome
- Application for judicial review allowed; decision of the Umpire set aside; matter remitted to the Chief Umpire or a designated Umpire for redetermination.
- Legal Topics
- Interpretation of Subsection 32(1) of the Employment Insurance Act, Leave of Absence Authorized by Employer, Agreement as to Date of Return to Work, Remittal for Redetermination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
THE ATTORNEY GENERAL OF CANADA
Applicant
MELISSA L. RUSSELL
Respondent
Procedural Posture
Application for Judicial Review / Decision From the Federal Court of Appeal
Legal Issues
- 1 Whether subsection 32(1) of the Employment Insurance Act applied
- 2 Whether there was an agreement between employee and employer as to the date of resumption of employment
- 3 Whether the Umpire erred in allowing the appeal from the Board of Referees
Ratio Decidendi
The Umpire erred as a matter of law; the statutory conditions in s.32(1) were satisfied because the employer authorized the leave and granted it for a defined period (one year), which constituted agreement as to the return date; accordingly the Umpire's decision is set aside and the matter is remitted for redetermination.
Court Disposition
Application for judicial review allowed; decision of the Umpire set aside; matter remitted to the Chief Umpire or a designated Umpire for redetermination.
Orders
- Application for judicial review is allowed.
- The decision of the Umpire dated May 27, 2008 (CUB 70627) is set aside.
Full Case Text
Judgment text and source record
1 paragraphs
Canada (Attorney General) v. Russell Court (s) Database Federal Court of Appeal Decisions Date 2009-05-27 Neutral citation 2009 FCA 177 File numbers A-376-08 Decision Content Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20090527 Docket: A-376-08 Citation: 2009 FCA 177 CORAM: NADON J.A. PELLETIER J.A. TRUDEL J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and MELISSA L. RUSSELL Respondent Heard at Halifax, Nova Scotia, on May 27, 2009. Judgment delivered from the Bench at Halifax, Nova Scotia, on May 27, 2009. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Federal Court of Appeal CANADA Cour d'appel fédérale Date: 20090527 Docket: A-376-08 Citation: 2009 FCA 177 CORAM: NADON J.A. PELLETIER J.A. TRUDEL J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and MELISSA L. RUSSELL Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Halifax, Nova Scotia, on May 27, 2009) NADON J.A. [1] This is an application for judicial review of a decision of an umpire, Mr. Justice Stevenson, dated May 27, 2008 (CUB 70627) who allowed the respondent’s appeal from a decision of the Board of Referees. [2] More particularly, the Umpire found that subsection 32(1) of the Employment Insurance Act (the Act) was not applicable because there had been no agreement between the respondent and her employer as to the date on which she would resume employment, as required by paragraph 32(1)(b) of the Act. [3] We are all agreed that the Umpire erred in so concluding. In our view, the two conditions set out in the subsection are clearly met in the present matter. Firstly, the period of leave was authorized by the respondent’s employer and secondly, the date of the respondent’s return to her job was agreed to between the respondent and her employer in that her leave of absence was granted by the employer for a period of one year. [4] As a result, the judicial review application will be allowed, the decision of the Umpire will be set aside and the matter will be remitted to the Chief Umpire or an Umpire designated by him for redetermination on the basis of these reasons. “M. Nadon” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-376-08 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. MELISSA L. RUSSELL PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: May 27, 2009 REASONS FOR JUDGMENT OF THE COURT BY: (NADON, PELLETIER, TRUDEL JJ.A.) DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCE: Korinda McLaine FOR THE APPLICANT SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPLICANT